Firestone Tire & Rubber Co. v. Hall
| Decision Date | 25 January 1980 |
| Docket Number | No. 58364,58364 |
| Citation | 263 S.E.2d 449,152 Ga.App. 560 |
| Parties | FIRESTONE TIRE & RUBBER COMPANY v. HALL et al. |
| Court | Georgia Court of Appeals |
Harold S. White, Jr., Atlanta, for appellant.
George T. Brown, Jr., Jonesboro, for appellees.
This case involves an action for property damage arising under strict liability law, sometimes called products liability, in existence in 1975 at the time of the alleged sale of the defective product. See Code § 105-106 as amended (Ga.L.1968, pp. 1166, 1167; and after 1975 by Ga.L.1978, p. 2202; 1978, p. 2218; 1978, p. 2267).
On December 3, 1975, Marvin C. Hall and Pearl Irene Hall purchased a 1975 Ford tri-axle dump truck for use in a new business venture. The dump truck came equipped with Firestone 12-ply tires, that is, two front tires "1100 X 20 tread 12 ply"; 8 tires rear, "1100 X 20 tread 12 ply." The truck was also specially equipped with a third axle "W/4 New Tires" to make it into a tri-axle dump truck.
As one of the first jobs undertaken by Marvin C. Hall, he contracted to haul crushed rock from Columbus to Bainbridge, Georgia. After a few trips, Hall contends that a front tire blew out, necessitating the purchase of a new tire and tubes, and other incidental expenses involved in the blowout. He also contends the truck was otherwise damaged as a result of the blowout, necessitating other repairs to the truck, which were later performed in Atlanta where he had purchased the truck, causing him to lose profits for the time period it was out of service. He also returned the destroyed tire for adjustment by the seller of the truck with Firestone, the same being in two pieces, "split right down the middle all the way around, and some of it, the tire, was missing." Firestone then told him "they weren't going to do anything about it."
Whereupon the Halls, as plaintiffs, sued Firestone Tire and Rubber Company, seeking damages as the result of a breach of warranty in the amount of $999.95; $1,500 for lost wages (for plaintiff Marvin C. Hall) due to said breach, and for all reasonable attorney fees and reasonable costs of court and expenses of litigation incurred by reason of the defendant's bad faith, and alleging defendant had been stubbornly litigious. By amendment during the trial the strict liability theory was invoked against the defendant as the manufacturer, again seeking damages in the amount of $999.95 for damages incurred to said truck and for tire replacement; $1,500 for lost wages (for plaintiff Marvin C. Hall) "and/or such reasonable hire of said truck while it was being repaired and unusable, together with the costs of this action," and by another amendment seeking expense of litigation and attorney fees for bad faith and stubborn litigiousness.
At the completion of the trial the case was submitted to the jury on the theory of strict liability that the manufacturer of any personal property sold as new property, either directly or through a dealer or any other person, shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate cause of the injury sustained.
The trial court also submitted to the jury the issue of attorney fees if the jury determined that the defendant had no genuine defense to this action "as to the reasonable value of such services based on the time spent and the legal and factual evidence or factual issues involved in accordance with the prevailing fees . . . in the metropolitan Atlanta area." The jury returned a verdict in favor of the plaintiffs in the amount of $1,730.38 plus $600 for attorney fees. A judgment was entered thereon. Whereupon the defendant filed a motion for judgment notwithstanding the verdict and in the alternative for a new trial, which was thereafter amended and denied after a hearing. Defendant appeals. Held :
1. Defendant first alleges error in the denial of its motion for judgment notwithstanding the verdict on the ground that the plaintiffs failed to establish the existence of a manufacturing defect in the tire at the time that it left the hands of the manufacturer. Defendant contends that the truck was equipped with "12-ply rated tires"; that the truck was overloaded, the major cause of blowouts is deflection and based on the testimony by its expert, the sole and proximate cause of the damage was the fault of the plaintiffs. A tire had been returned to the defendant for examination. Plaintiff Marvin C. Hall, however, contends the tire involved in the blowout was returned in "two pieces" and as shown by his evidence it was a "1100 X 20 tread 12 ply" tire. He testified that the tire produced by the defendant at the trial was not the tire involved in the incident and which blew out. Defendant's expert testified that the tire he examined contained eight plys and is referred to in the industry "as a 12-ply rating tire."
Defendant contends that the plaintiffs failed to show that the manufacturer's product when sold by the manufacturer was defective. See Center Chemical Co. v. Parzini, 234 Ga. 868, 869, 218 S.E.2d 580. However, the plaintiffs contend that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence, that is, the evidence shows that the truck tire while plaintiff Marvin C. Hall was driving blew out, causing the vehicle to be damaged as a result thereof; that the tube was totally destroyed as well as a flap which was part of the assembly of the tire on the wheel, the rim was blown away and lost, and the tire was in two pieces. Based upon the above evidence and testimony that there was proper pressure in the tire and no known road hazards to cause the blowout, that the tires were new and that there was no other reasonable explanation for the blowout other than a defect in the tire, there was ample evidence from which the jury could infer that the property damage was due to a defect at the time the tire left the hands of defendant. See Firestone Tire & Rubber Co. v. King, 145 Ga.App. 840, 842, 244 S.E.2d 905. Compare Tepper v. Marty's Inc., 139 Ga.App. 140, 228 S.E.2d 32, a negligence case, and Firestone Tire & Rubber Co. v. Jackson Transp. Co., 126 Ga.App. 471, 191 S.E.2d 110, involving implied warranty. The evidence was sufficient to authorize a verdict and judgment for the plaintiffs.
2. Defendant next contends that the evidence failed to establish the measure of damages for the injury to the personal property. Here plaintiffs did not attempt to establish "the difference between the value of the property before the damage and afterwards" as was the case in Douglas v. Prescott, 31 Ga.App. 684(1), 121 S.E. 689. However, plaintiffs established by evidence the proper and necessary repairs and expenses involved as a direct and proximate result of the blowout. See General GMC Trucks, Inc. v. Crockett, 145 Ga.App. 503(2), 244 S.E.2d 78. Further, there was evidence to establish the lost profits involved with such a degree of certainty as to allow some recovery therefor. See Appling Motors, Inc. v. Todd, 143 Ga.App. 644, 645(2), 239 S.E.2d 537; Jenkins v. Cobb, 47 Ga.App. 456, 462, 170 S.E. 698. There is no merit in this complaint.
3. The next enumeration of error contends that the plaintiffs' evidence failed to establish any bad faith or stubborn litigiousness on the part of the defendant, that is, that same must have been a part of the transaction which give rise to the plaintiffs' original claim,...
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